CEO 16-5 — April 20, 2016
APPLICABILITY OF F.S. 112.313 STANDARDS OF CONDUCT
TO EMPLOYEE OF DISTRICT MEDICAL EXAMINER'S COMPANY
To: Name withheld at person's request (Panama City)
Under the particular facts presented, an employee of a private professional association which contracts to provide District Medical Examiner's services would not violate Sections 112.313(3) and 112.313(7)(a), Florida Statutes, if he forms an LLC that is paid to transport bodies from the scene of death to the District office, inasmuch as he is not a "public officer" or a "public employee," and therefore is not subject to those standards of conduct. CEO 90-67 is referenced. 1
Is an employee of a professional association which provides District Medical Examiner's services through a contract with a County a "public officer" or "public employee" subject to the standards of conduct of Section 112.313, Florida Statutes?
Your question is answered in the negative, under the circumstances presented.
In this inquiry, the requestor is Director of Operations for a Medical Examiner's District, and all services for the District, including the services of the Medical Examiner, are provided pursuant to a contract between the County and the professional association of a medical doctor who serves as the District Medical Examiner. The requestor proposes to form an LLC, in which he would be the managing member, and which would transport bodies from the scene of death to the District office. The LLC would submit invoices for services rendered, and, if approved by the District Medical Examiner, payment would be made by a particular county within the District.
If the requestor were a public officer or public employee, Section 112.313(3), Florida Statutes,2 would prohibit him from selling services to his District, and Section 112.313(7)(a), Florida Statutes,3 would prohibit him from holding a contractual relationship with a business entity (his LLC) doing business with his District. However, as set forth below, we find that the requestor is neither a public officer nor a public employee, and therefore Sections 112.313(3) and 112.313(7)(a) are not applicable.
The Medical Examiner's Act (Chapter 406, Florida Statutes) provides that the District Medical Examiner in each of 24 Districts, and any Associate Medical Examiners hired by such Districts, are public officers and therefore are subject to the restrictions found in Section 112.313. Section 406.06(5), Florida Statutes. As explained in CEO 90-67, each District Medical Examiner must file an annual affidavit with the Supervisor of Elections in the county where he or she resides, assuring that Associate Medical Examiners have no conflicting financial interests or clients before the agency.4 Rules promulgated by the Medical Examiner's Commission speak to potential conflicts of interest for District Medical Examiners, who may provide auxiliary services (like rental space or equipment, laboratory work, courier and investigative services) only if they qualify for one of the exemptions cited in Section 112.313(12), Florida Statutes.5 However, the Medical Examiner's Act and its related rules do not address administrators, like the requestor, who is privately employed by the professional association of the District Medical Examiner.6
Nor is the requestor a public employee. Medical Examiner Districts, according to Florida Attorney General Opinion 03-57, are special districts. Although the requestor's District is supported by public funds and serves the public interest, services are provided through the contract between the Medical Examiner's professional association and the Board of County Commissioners, which aggregates funding for six counties in the District. This contract describes the Medical Examiner's professional association as an independent contractor, and specifically states that neither the District Medical Examiner, nor any of the District's employees or subcontractors, are employees of the County. Thus, under the situation presented, we find that the requestor is an employee of an independent contractor, and is neither a public officer nor a public employee.
Accordingly, under the particular circumstances presented, we find that Section 112.313(3) does not prohibit the requestor from providing transportation services via contract between his LLC and the District Medical Examiner's professional association, and that Section 112.313(7)(a) does not prohibit his holding an employment or contractual relationship with his proposed LLC.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 15, 2016, and RENDERED this 20th day of April, 2016.
Stanley M. Weston, Chair
Prior opinions of the Commission on Ethics may be obtained at www.ethics.state.fl.us.
Section 112.313(3) provides:
DOING BUSINESS WITH ONE'S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
Section 112.313(7)(a) provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.— No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee…; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.
The Commission on Ethics has recognized that Section 406.06(2), Florida Statutes, requires the District Medical Examiner to discuss financial interests with each associate medical examiner, with specific reference to: 1) Section 112.313(3), which prohibits involvement with a business entity that is selling or leasing goods, services, or realty to the District; 2) Section 112.313(7)(a), which prohibits employment or contractual relationships with business entities doing business with the District, or those that would create a continuing or frequently recurring conflict of interest; and 3) Section 112.313(2) and (4), which prohibits gifts having a potential to influence official duties.
Rule 11G-1.002(4)(c)-(d), Florida Administrative Code, incorporates Section 112.313(12), Florida Statutes, which permits waiver of a conflict by a vote of the appointing body, and also permits business awarded by a rotation system, by sealed competitive bidding, or by proof that the business entity is the sole source of supply within a political subdivision.
Although the requestor primarily works as Director of Operations, he also serves as a forensic investigator as needed. Additionally, the requestor works part time as a paramedic in two counties within the District, and is certified as a law enforcement officer through one of those counties. The Code of Ethics applies to him as an employee of these counties, but the LLC he proposes would not provide any services within these two counties.